Editorial: Ruling seeks halt to data ‘invasion’

Published: Friday, December 27, 2013 at 06:11 PM.

A federal judge’s preliminary injunction against a federal phone surveillance program isn’t the last word on whether the government’s activity is unconstitutional. But it’s a powerful voice raised in protest of the surveillance state, one that hopefully will clarify the debate between privacy and security.

U.S. District Judge Richard Leon on Monday ruled that a National Security Agency program dating back to the Bush administration that collects information on nearly all telephone calls made to, from or within the United States likely violates the Fourth Amendment ban on unreasonable searches and seizures.

His opinion does not constitute a definitive ruling, only that he believes the appellant — a conservative legal activist — is likely to prevail. The judge stayed his order pending a government appeal.

Even if Leon rules against the NSA, the case still would have to find its way to the Supreme Court for a final decision on the program’s constitutionality.

Nevertheless, Judge Leon presents a scathing indictment of the government’s methods and rationale.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” he wrote.

NSA surveillance activities are supposed to be approved by a separate, secret panel of judges called the Federal Intelligence Surveillance Court. A district judge therefore does not have jurisdiction over NSA collection orders. But Leon believes the lower courts can hear constitutional challenges to the overall program.

A federal judge’s preliminary injunction against a federal phone surveillance program isn’t the last word on whether the government’s activity is unconstitutional. But it’s a powerful voice raised in protest of the surveillance state, one that hopefully will clarify the debate between privacy and security.

U.S. District Judge Richard Leon on Monday ruled that a National Security Agency program dating back to the Bush administration that collects information on nearly all telephone calls made to, from or within the United States likely violates the Fourth Amendment ban on unreasonable searches and seizures.

His opinion does not constitute a definitive ruling, only that he believes the appellant — a conservative legal activist — is likely to prevail. The judge stayed his order pending a government appeal.

Even if Leon rules against the NSA, the case still would have to find its way to the Supreme Court for a final decision on the program’s constitutionality.

Nevertheless, Judge Leon presents a scathing indictment of the government’s methods and rationale.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying it and analyzing it without judicial approval,” he wrote.

NSA surveillance activities are supposed to be approved by a separate, secret panel of judges called the Federal Intelligence Surveillance Court. A district judge therefore does not have jurisdiction over NSA collection orders. But Leon believes the lower courts can hear constitutional challenges to the overall program.

In the 1979 case Smith v. Maryland, the Supreme Court upheld the constitutionality of law enforcement collecting metadata from phone calls. The court ruled that police did not need a search warrant to install a device which recorded the numbers dialed on a particular phone line. Federal officials today have used that to justify the NSA’s sophisticated program of scanning any and every phone call made by a U.S. citizen to collect such information as the number called, time and duration of the call, and where the phone was located when the call was made.

Judge Leon rightly questions whether a disco-era law of corded telephones needs to be updated for a society of mobile communications, as well as the depth and range of the NSA program.

“The ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives,” Leon wrote. “I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

The judge also rejected the government’s ultimate justification for the program: that it works to stop terrorists from carrying out attacks.

“I have significant doubts about the efficacy of the metadata collection program as a means of conducting time-sensitive investigations in cases involving imminent threats of terrorism,” Leon wrote. “The government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.”

With a lack of a compelling state interest, the potential exists for such a vast collection of data to be misused for means unrelated to security. Congress, not just the courts, must step in to restore balance.

A version of this editorial first appeared in the Panama City News Herald, a Halifax Media Group newspaper in Florida.